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Great Western Nat. Gas and Oil Co. v. Hawkins.

proceeding only quasi judicial in its nature, it is clear that a proceeding to condemn land is an adversary proceeding. A condition precedent to the appointment of appraisers is the delivery of a copy of the instrument of appropriation to the landowner, if a resident of the county; or if a nonresident or unknown, the publication for three weeks in a newspaper of the substance of the instrument of appropriation. The legislature has provided that 'this notice be given the landowner at the inception of the proceedings instead of after the appraisers have been appointed and made their report. If he can not be heard to object to the proceedings until after the appraisers have been appointed and reported, there could be no reason for giving him any notice until that time. It has been held under the railroad act that "the filing of the act of appropriation and service of a copy upon the owner of the land is notice to the party of the pendency of a suit." Ney v. Swinney, 36 Ind. 454.

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The power of eminent domain, the right to appropriate the private property of a citizen to a public use without his consent,-guarded as carefully as it can be, has been characterized by the Supreme Court as a "very high and dangerous one," and that no restriction for the better protection of the property owner should be disregarded unless the very words of the statute require it. Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co., 116 Ind. 578. It is doubtless true that these questions could be raised at a later stage of the proceedings. But the right of the corporation to maintain the proceedings at all is a question logically preliminary to the appointment of the appraisers. The power exists only by virtue of some statute. And the statute not only designates the corporation to which the power has been delegated, but it also limits the purpose for which the power can be exercised. If the corporaiton is not such as the statute designates, or if it seeks to condemn for purposes not designated in the statute, or has

Great Western Nat. Gas and Oil Co. v. Hawkins.

failed to perform any condition precedent to the exercise of the power, it has no right to have appraisers appointed.

In Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co., supra, it was held that an instrument of appropriation which omitted a fact in its nature jurisdictional was an insufficient foundation for subsequent proceedings, and the judgment was reversed for failure of the petition or instrument of appropriation to show an effort of the corporation seeking title to acquire it by agreement. We can see no reason for an appellate tribunal saying to a trial court that it has no power to pass upon the sufficiency of the instrument of appropriation until after the appointment and the report of the appraisers, although the same question was presented before this additional expense was incurred. A court should not be required to enter upon the question of compensation where the instrument shows upon its face that it is insufficient to invoke the statutory power. We fail to see how the condemning party can be harmed by determining these questions at the beginning of the proceedings, nor should it be heard to complain that it was prevented from summarily paying or tendering the damages assessed and entering into possession of the real estate when its very right to condemn was the chief question presented. Not only do the implied holdings in Ney v. Swinney, supra, and Lake Shore, etc., R. Co. v. Cincinnati, etc. R. Co., supra, as well as the better reasoning, support the practice above indicated, but authorities in other jurisdictions are to the effect that the right to condemn is to be determined before the appointment of appraisers to estimate the amount of compensation to be made. In re Split Rock Cable Road Co., 128 N. Y. 408; Baltimore, etc., R. Co. v. Pittsburg, etc., R. Co., 17 W. Va. 812; Wheeling, etc., Bridge Co. v. Wheeling Bridge Co., 138 U. S. 287, 11 Sup. Ct. 301, 34 L. Ed. 967. See In re St. Paul, etc., R. Co., 34 Minn. 227; In re Split Rock Cable Road Co., 12 N. Y. Supp. 116; Cin

Great Western Nat. Gas and Oil Co. v. Hawkins.

cinnati, etc., R. Co. v. Bay City, etc., R. Co., 106 Mich. 473, 64 N. W. 471.

There are cases holding that where a statute provides that the application may be to a judge, officer, or board acting in a ministerial capacity, and "such a case is made as is required by the statute," the officer or tribunal has no discretion whether or not appraisers will be appointed, but that the duty to make the appointment is imperative. But in such cases the principle is recognized, that necessarily the officer must look to see whether such a case is presented as authorizes and requires him to act. Illinois, etc., R. Co. v. Rucker, 14 Ill. 353; Western Union Tel. Co. v. Dickson, 30 Wis. 389; Chicago, etc., R. Co. v. Wilson, 17 Ill. 123; Lewis, Eminent Domain (2d ed.), $387.

The statute here in question provides that upon filing the act of appropriation with the clerk of the circuit or other court of record, and the delivery of the copy or making publication, "the circuit court or other court of record, or any judge thereof in vacation," shall appoint appraisers. In the case at bar the application came on for hearing by the circuit court at a regular term. The statute permits the application to the court in a particular manner and upon certain conditions, and in such case it is said, "the court necessarily has power to determine whether the conditions. exist or have been complied with, and whether the application has been made in proper form. The adjudications upon such questions will be as binding as adjudications in any other cases, and the same questions cannot be again litigated between the same parties. Where the application is to a court, the better practice clearly is that all objections which go to the right of the petitioner to maintain the proceedings should be determined before the assessment of damages is entered upon." Lewis, Eminent Domain (2d ed.), §388.

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We think the court not only had the right to inquire into the sufficiency of the instrument of appropriation prop

Great Western Nat. Gas and Oil Co. v. Hawkins.

erly and seasonably questioned, but that it was its duty to refuse to appoint appraisers unless it appeared upon the face of the proceedings that the particular petitioner had brought itself substantially within the terms of the statute conferring the power which it is asked to exercise.

It is first argued against the sufficiency of the petition, that it does not show that appellant seeks to appropriate the real estate for any purpose authorized by statute, nor does it show that condemnation is sought for a public use. The statute authorizes the corporation to condemn only "for the purpose of conducting gas to its patrons within this State, or conducting gas from its wells or wells leased by it, or from its manufactory to any point within this State." The only averment in the instrument of appropriation which attempts to state the purpose of condemnation is, "that said real estate is necessary for the use of said company for its pipe-line and connections therewith in the construction of the same from the city of Muncie north to the gas-wells and territory owned by said company in the northern part of said county of Delaware."

The right of eminent domain is limited, not conferred, by the Constitution. The legislature must grant the authority and prescribe the manner in which and the purpose for which it may be exercised. But this grant of authority must be within the constitutional limitation that the property sought to be taken is for some public use. And while the courts can not question the wisdom of the act of the legislature declaring the exigency or necessity for the exercise of the right, yet the courts may prevent a legislative attempt to permit the taking of private property for other than a public use. If a legislative act assumes to authorize the seizure of the property of one citizen for the benefit of another, it can not be upheld. "The right of eminent domain," said the court in Blackman v. Halves, 72 Ind. 515, "can only be invoked for the compulsory taking or the enforced appropriation of private property when some pub

Great Western Nat. Gas and Oil Co. v. Hawkins.

lic exigency requires the exercise of that sovereign right." See Water Works Co. v. Burkhart, 41 Ind. 364; Wild v. Deig, 43 Ind. 455, 13 Am. Rep. 399. Nor will the legislative declaration that the use for which authority is given to exercise the right to seize the property of the individual is a public use make it a public use. "Whether the use is a public one is a judicial question, and not a legislative one." Logan v. Stogsdale, 123 Ind. 372, 8 L. R. A. 58, citing Town of Rensselaer v. Leopold, 106 Ind. 29; Sadler v. Langham, 34 Ala. 311; In re Deansville Cemetery Assn., 66 N. Y. 569, 23 Am. Rep. 86; Bankhead v. Brown, 25 Iowa 540; Tyler v. Beacher, 44 Vt. 648, 8 Am. Rep. 398; In re St. Paul, etc., R. Co., 34 Minn. 227; City of Savannah v. Hancock, 91 Mo. 54; Concord Railroad v. Greely, 17 N. H. 47.

It must be conceded that in this State private property. can be taken only for a public use. "It is conceded on all hands," says Judge Cooley, "that the legislature has no power, in any case, to take the property of one individual and pass it over to another without reference to some use to which it is to be applied for the public benefit." Cooley, Const. Lim. (6th ed.), 651; Lewis, Eminent Domain (2d ed.), 8157; Missouri Pac. R. Co. v. Nebraska, 164 U. S. 403, 17 Sup. Ct. 130, 41 L. Ed. 489. It is not controverted that the property must be taken for a public use, but the question is, what is a public use within the meaning of the law, and whether under our Constitution private property may be taken for the public good or general welfare as contradistinguished from a technical public use. The fact that the present Constitution (Art. 1, $21) does not contain the term "public use," and that the Constitution of 1816 (Art. 1, §7) did contain these words, is of no significance in view of the decisions by the Supreme Court. Neither Constitution expressly forbids the taking of private property for a private use, and under neither could private property be taken except for a public use. The effect

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